The Supreme Court of Vermont Law Blog: An on-going conversation about the practice of law in Vermont, featuring summaries of Vermont Supreme Court decisions, a dollop of lampooning, legal analysis, and a charming aggregation of creative thought.

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Saturday, August 30, 2014

A Scrap over Scrap

My favorite land-use acronym, which one of our writers noted some time ago, is BANANA-NIMBY: “Build Absolutely Nothing Anywhere Near Anything, and most certainly Not In My Back Yard.” I don’t know its specific origin, but I think it’s funny.

This particular land-use kerfuffle arises from the environmental division’s “grant of a discretionary permit to All Metals Recycling, Inc., to establish an outdoor storage area and install a scale and scale house.” In essence, this permit allowed All Metals to keep on doin’ what it was doin’—it had already built the scale and scale house that the permit authorized. There’s also a dispute over a proposed parking plan thrown in for good measure.

All Metals has been processing scrap metal at its location for several years. This involves sorting, shearing, crushing, and compacting metals with “a variety of industrial equipment.” It’s “located in Williston’s Gateway Zoning District North (GZDN).” All Metals subleases from a nonprofit. Interestingly, though the owner of the property said that the scale and scale house’s proposed location were part of the sublease, it turns out to be town property. Nice.

Anyway, a number of residents, “including a concerned business competitor, sent a letter to the Town’s Zoning Administrator expressing concerns regarding applicant’s business.” You know—no permit, possibly not a permissible use in the GZDN—that kind of thing. After notification, All Metals applied for a discretionary permit. There was a public notice and hearing, and the Development Review Board (DRB) approved the permit subject to several conditions, including that All Metals obtain a lease from the town for the land it had put the scale and scale house on. So, All Metals did that. Residents then appealed to the environmental division.

The environmental division “swiftly disposed of a series of cross-motions for summary judgment.” It found that All Metals’ proposed use was permitted in the GZDN under the zoning bylaws, but did not find that the proposed off-street parking was sufficient. So, All Metals submitted a new plan, which residents tried to keep out. But the court let it in, found that with the “with the addition of a bicycle parking space,” All Metals was good to go and issued the discretionary permit. Residents appealed.

Residents first argue that the environmental division flubbed when it found that All Metals’ proposed operation is a permitted use under the zoning bylaws. The SCOV reviews summary judgment decisions de novo, applying the same standard as the trial court. If you’ve been reading this blog for any length of time and you don’t have this memorized then I’m very, very, very disappointed in you, but here we go again: summary judgment happens is a go when there are no genuine issues of material fact and a party is entitled to judgment as a matter of law. The nonmoving party gets the proverbial benefit of the doubt.

The SCOV first notes that the zoning bylaws specifically reference “the North American Industrial Classification System (NAICS).” This is important in this case because when read together with the zoning bylaws, this means waste management and remediation facilities fall within GZDN-permitted use. We’ll skip the technical details. That’s the bottom line—All Metals’ use is a permissible use in its zoning district.

But residents try to argue the definition. Specifically, residents argue that because All Metals doesn’t deal with garbage it’s not really a waste management or remediation facility within the NAICS definitions. The SCOV disagrees. Reviewing the definitions again, the SCOV concludes that there’s no playing-around-with-trash-to-qualify requirement. The SCOV points out that the residents overlook the “and/or” grammatical abomination in the NAICS definition. You should never use “and/or” unless you hate puppies and America (or you’re quoting from something, which is what the SCOV was doing). The point there is that All Metals’ sorting, shearing, crushing, and compacting metals seems to clearly fall within acceptable definitional parameters.

Residents also argue that All Metals’ business is “industrial” use rather than GZDN-permitted “light industrial” use. Because there’s no bylaws-based argument there, it doesn’t go very far. Likewise, the residents’ argument that the bylaws’ inclusion of other, heavier-duty-industrial uses in other development districts means that All Metals’ use is not permitted in the GZDN gets no traction. There, the SCOV reasons, “descriptions of each zoning district are dispositive of nothing about the GZDN.” All these descriptions mean is that there are a variety of industrial-type permitted uses in various development districts within the town. Thus, the SCOV concludes, the environmental division properly granted summary judgment in All Metals’ favor.

Residents’ next argument is that the environmental division shouldn’t have considered the revised parking plan because it presented new issues that weren’t considered by the DRB. Residents argue that the court should’ve kicked it back to the DRB for public notice and hearing. This gets reviewed for abuse-of-discretion (or as I like to call it “fat chance” review).

Parking areas were generally identified in the application to the DRB, which the DRB approved. When the environmental division reviewed the application, it wasn’t sure the parking plan met the bylaws’ requirements. So All Metals submitted a revised plan, which residents tried to keep out. The trial court let it in anyway, and relied on it in determining that the application met the bylaws’ requirements.

The environmental division can remand when changes are made to a zoning permit application, and when truly substantial changes are made, remand is likely required to ensure public notice and hearing. But not so for minor changes. The SCOV refers to the “procedural ping-pong match” that would result if every single revision required remand.

Here, the changes appear to have been to delineate specific parking spaces whereas the application previously identified general parking areas. Not a big deal there, and no remand required despite residents’ protests.

The remaining issue is whether the parking plan meets the bylaws’ standards. First the SCOV deals with residents’ argument that required setbacks leave All Metals with insufficient parking. The residents’ argument is based on language in the bylaws that setbacks a “ordinarily measured” from property lines. Because All Metals lease part of its location from the town and part from the nonprofit, residents’ reading means many of the parking spots end up impermissibly within setbacks.

The SCOV reads “ordinarily measured” differently, reasoning “this wording leaves room for situations just like the present one, in which a business leases multiple parcels and uses space on each for its operations.” All Metals seems to be in the clear regardless because there’s an exception that eliminates front and rear setbacks when “landscaped buffers are placed between properties with different uses.” Here, All Metals is putting in the required buffers and thus compliant with the bylaws.

Residents’ next argument is that the parking plan violates the bylaws because the bylaws provide off-street parking is to be “on the same lot or parcel and under the same ownership as the use they serve.” Residents argue that there are different owners, so game over. The SCOV disposes of this argument quickly, reasoning that as a lessee, All Metals is an “owner” of both parcels it leases under the bylaws.

Residents also argue “that certain parking spaces located next to a roofed overhang on the subleased parcel” fail to protect “from ice and snow sliding off roofs” as required by the bylaws. This chapter of the bylaws applies only to new construction, however, and that, as they say, is that.

The final argument is that the parking plan is unworkable. But this is at heart a weight-of-the-evidence argument and there was evidence presented that the plan was workable. So that melts like the proverbial sinful snowball. Thus, the SCOV affirms the grant of All Metals’ discretionary permit.